6.5.2.1 Priority of the territoriality principle
In all legislative acts, the territoriality principle is the basic principle for the allocation of jurisdiction. It is applicable without restrictions and seems to be the greatest common denominator in a European debate on jurisdiction criteria. While other bases for jurisdiction may be optional to the national legislators implementing the framework decisions, jurisdiction on the basis of the territoriality principle must be established by all Member States in all cases.
6.5.2.2 Interpretation of the territoriality principle
The territory refers to the Member States’ territories in most cases. The framework decision on combating terrorism, however, allows for the creation of a European territory as an entity in national jurisdiction laws.567
More important is the question of where an act is considered to have been committed. As outlined in the first part, there are numerous possibilities, especially the place (or places) where the defendant acted and the place where the harm was
Article 9(2).
568
Article 10(2).
569
Article 8(5) of the fram ework decision: Mem ber States m ust open a forum if a com puter
570
system was “accessed from its territory”.
inferred or the act completed. An explicit indication of these places is only given in two cases, namely in the framework decision on racism and xenophobia568 and the framework decision on attacks against information systems569 where we find the principle of ubiquity. This difference may be owing to practical considerations. Although a divergence of the place where the defendant acted and where the act was completed can occur with respect to many crimes, it is certainly most typical in cases of cybercrime. Surprisingly, territorial jurisdiction concerning child pornography need only be assumed for the place where the defendant acted.570
It would appear, then, that the principle of territoriality means different things in EU legislative acts. However, it is dangerous to infer too much from this, because there seems to be no theoretical concept behind this differentiation. Rather, it is a reaction to practical needs and political feasability.
6.5.2.3 Development of the personality principle
The personality principle, especially the active personality principle, is present in almost all the framework decisions, but in different forms. There is, however, a clear development over time:
In the framework decision on counterfeiting of the Euro there is no personal element in jurisdiction. The framework decision on racism and xenophobia introduces the active personality principle. The framework decision on non-cash means of payment also adopts the active personality principle, but allows to subject it to the requirement of a lex loci, thus introducing a double criminality requirement. The framework decision on terrorism widens the scope of personality to include residents and applies the passive personality principle independently. From the framework decision on corruption in the private sector onwards, the personality principle is a standard.
decisions, however, it is only optional if states are ready to surrender their own nationals both generally (as they now have to) and in the individual case. This amounts to vicarious administration according to the principle of “aut dedere aut iudicare”.
The question that remains is why solutions to the question of jurisdiction that are so similar in the overall conception often vary in seemingly insignificant details. This is especially true for the cooperation that Member States should use to concentrate proceedings in one state. In some measures there are no criteria given that could be used in the negotiations. In others there are slightly different hierarchical orders. A particular conceptual reason for this is not apparent. The reasons can, as indicated above, only be found on a practical, political level. These framework decisions only concern themselves with measures that seemed relevant at the time of the adoption and confine themselves to typical situations as illustrated with the framework decisions on racism and attacks on information systems; the typical image here was cybercrime. The motivation also plays an important part: the framework decision on terrorism is certainly most far-reaching.
6.5.2.4 Protective principle
The protective principle as such is only found in the framework decision on terrorism (Article 9(3)) and the framework decision on counterfeiting of the Euro (Article 7(1)), but in a very wide form: every state always has jurisdiction. That only these two acts set down the protective principle is due to the subject-matter: they are the only framework decisions that could concern genuine state interests.
6.5.2.5 Exorbitant jurisdictions
The basic concept of all these legal acts seems to rest on two steps. First, one seeks to create as many fora for a certain case as possible, later one seeks to limit the consequences of this by requiring states to cooperate. For this cooperation, however, there are neither strict criteria nor is there an obligation to succeed. The new
Fram ework decision 2009/948/JHA of 30 Novem ber 2009(OJ L 328/42 of 15.12.2009),
571
recital 17.
Cf. also Herlin-Karnell, 15 ELJ (2009), p. 351 to this aspect.
572
CO M/2000/854fin. p. 17 and p. 27.
573
CdR 87/2001fin. at recital 26.
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framework decisions follow this basic pattern and further elaborate it.
This procedure cannot convince. It does not give the least attention to the interest of a defendant in being able to predict the jurisdiction he will be subjected to and to defend himself adequately. The framework decision on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings purposely avoids answering the question of whether an individual may have a right to be tried in a specific jurisdiction and leaves it entirely to national law.571 That this “interest” can actually be a real procedural right on a European level will be shown later. Suffice it to say here that independently of any individual-rights-based position, criminal procedural law in general serves to give a framework to the exercise of state power. Were prosecutions to negotiate freely over jurisdiction on the European level, this would open the way to forum shopping and undermine the trust in the impartiality of criminal proceedings.
All this goes to show that, on the European level, there is a change of the understanding of criminal law. Instead of being the last resort, the ultima ratio of state measures,572 it is regarded as an effective means to fight all unwelcome developments in society. A wide jurisdiction of many states is therefore positive per se, whereas negative conflicts of jurisdiction are a real threat. That this is not just speculation can be seen in the explanatory memorandum to the Commission’s proposal on trafficking in human beings and on child pornography573 that claims the need to create competences “which are as clear and as far reaching as national legal systems will allow in order to guard against persons evading prosecution.”
Or, in the words of the Committee of the Regions on the same legislation:574 “The Committee of the Regions [...] highlights the particular importance of international extradition agreements and national provisions on criminal law jurisdiction with a view to ensuring that criminal acts committed wholly or partially outside the home country
See Fletcher, 26 Yearbook of European Law (2007), p. 10; Vander Beken/Vermeulen/
575
Lagodny, NStZ 2002, p. 625.
of the offender can be punished under criminal law without loopholes”.
Loopholes, however, can be avoided through extradition alone. The system of the European Arrest Warrant is already so advanced that, if there were a system of uniform allocation of jurisdiction, loopholes would hardly exist. The added “advantage” of multiple proceedings over extradition is based on the better and faster results prosecutors can get when they cooperate. If multiple investigations are initiated, cooperating Member States can at any given moment chose the most practical forum for a trial, combine their knowledge through data exchange and exchange of evidence and react flexibly to new developments in the investigation. It is clear that this results in a direct disadvantage to the defendant who will normally not be able to defend himself adequately in several different countries simultaneously, as he will be faced with investigations based on different legal orders and in different languages, which, among other things, also multiplies the costs of adequate legal representation during the investigating stage.
Finally, the conscious creation of positive conflicts of jurisdiction certainly violates Article 82 para. 1 lit. b TFEU (ex-Art. 31(d) EU) that requires EU action to prevent and settle conflicts of jurisdiction.575